FLORIDA SUPREME COURT

Judicial Ethics Advisory Committee

Opinion Number: 2004-37
Date of Issue: December 15, 2004

ISSUES

May a judge-elect, who has previously been retained by a party as an expert witness, give expert testimony at a deposition pursuant to a subpoena?

ANSWER: No.

FACTS

The inquiring judge-elect will assume office on January 3, 2005. Prior to qualifying for election as a judge, the inquiring judge was retained as an expert witness by the plaintiff in a legal malpractice lawsuit involving a prenuptial agreement. The jury trial in that matter is set for March 2005. Counsel for the plaintiff wants to videotape the inquiring judge's deposition prior to the judge taking the bench for use at trial. Plaintiff's counsel has told the inquiring judge that there will be no mention during the plaintiff's questioning that the inquiring judge is a judge-elect or a judge.

DISCUSSION

Canon 2A of the Code of Judicial Conduct provides that: "A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." Canon 2B states in part: "A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge."

It is well settled and supported by numerous Judicial Ethics Advisory Committee (JEAC) opinions that the testimony of a sitting judge in any forum requires that the judge be under subpoena. A judge cannot voluntarily testify in any matter. Canon 2 and commentary to Canon 2B, Fla. Code Jud. Conduct; see also Fla. JEAC Ops. 90-2; 93-31; 95-32.

The next issue is whether Canon 2 of the Code of Judicial Conduct applies to a judge-elect. There is no specific canon addressing this issue. The Committee therefore must balance those acts that are necessary for a judge-elect to complete prior to assuming the bench, and those activities which are not necessary and which may lend the prestige of judicial office to a private interest.

In Fla. JEAC Op. 98-25, the Committee stated that a judge-elect could not actively participate in partisan campaigns before the date of the judge-elect's investiture. The committee reasoned that a judge-elect is no longer a "private citizen" and must, therefore, curtail political involvement accordingly. The Committee was concerned that by participating in the political arena the judge-elect would lend the prestige of judicial office to advance the interests of a candidate. However, in Fla. JEAC Op. 00-39 the judge-elect inquired whether there was any limitation on continuing to appear before local judges between the time of his election and the time he assumed the bench. The Committee stated that the risk of misusing judicial prestige did not outweigh the important consideration of allowing a lawyer to effectively and expeditiously conclude legal matters that have been entrusted to the lawyer who has recently been elected to the bench.

Since the deposition in this matter is not an activity necessary for the judge-elect to perform prior to assuming the bench and the judge-elect's testimony in the deposition will be used to advance the private interests of a litigant, the judge should pursue legal remedies so that the judge does not have to participate in the deposition. 1 See JEAC Op. 03-06 (opining that a judge could not appear in a videotape to be used in a personal injury settlement negotiation even though the judge was only being deposed because he had formerly been the karate teacher of an injured plaintiff and not because he was a judge; explaining that a judge is a judge twenty-four hours each day and the videotape would aid the plaintiff in seeking compensation in an adversary process).

The Committee takes this opportunity to readdress Fla. JEAC Op. 95-35 in which the majority of the Committee "appears" to permit a senior judge subject to recall to testify as an expert witness on attorney fees. This Committee specifically recedes from that opinion.

This Committee notes that the testimony requested from the inquiring judge-elect by the plaintiff's attorney is different than the testimony requested in Fla. JEAC Op. 03-04. In Fla. JEAC Op. 03-04, this Committee stated that a judge had an ethical duty pursuant to Canon 3(D)(1) and 3(D)(3) of the Code of Judicial Conduct to give subpoenaed testimony in a Florida Bar or Judicial Qualifications Commissions matter dealing with investigations regarding attorney misconduct or judicial misconduct.

REFERENCES

Fla. Code Jud. Conduct, Canon 2, Commentary to 2B

Fla. JEAC Ops: 90-2, 93-31, 95-32, 95-35, 98-25, 00-39, 03-04, 03-06.

_____________

The Judicial Ethics Advisory Committee is expressly charged with rendering advisory opinions interpreting the application of the Code of Judicial Conduct to specific circumstances confronting or affecting a judge or judicial candidate. Its opinions are advisory to the inquiring party, to the Judicial Qualifications Commission and to the judiciary at large. Conduct that is consistent with an advisory opinion issued by the Committee may be evidence of good faith on the part of the judge, but the Judicial Qualifications Commission is not bound by the interpretive opinions by the Committee. Petition of the Committee on Standards of Conduct Governing Judges, 698 So.2d 834 (Fla. 1997). However, in reviewing the recommendations of the Judicial Qualification Commission for discipline, the Florida Supreme Court will consider conduct in accordance with a Committee opinion as evidence of good faith. Id.

For further information, contact Judge Richard R. Townsend, Acting Chair, Judicial Ethics Advisory Committee, Post Office Box 1018, Green Cove Springs, Florida 32043.

Participating Members:
Judge Karen Cole, Judge Lisa Davidson, Judge Michael Raiden, Judge McFerrin Smith, III, Judge Emerson R. Thompson, Jr. Judge Richard R. Townsend, Judge Dorothy Vacccaro, and Ervin Gonzalez, Esquire. Marjorie Gadarian Graham, Esquire, abstains.


Copies furnished to:
Justice Peggy Quince
Thomas D. Hall, Clerk of Supreme Court
All Committee Members
Executive Director of the J.Q.C.
Office of the State Courts Administrator
(Name of inquiring judge deleted from this copy)

1 Judges subpoenaed to testify in a matter obviously must obey a subpoena, but the judge should take all legal steps to notify a presiding judge that giving expert testimony in a legal proceeding is precluded under the Code of Judicial Conduct. Notification to the presiding judge may require filing a motion for a protective order.